Tag Archives: extractive industry

In its monuments proclamations, the Trump Administration asserts a sweeping power to reclassify fifteen million acres of protected federal land and hundreds of millions of marine acres. The proclamations already issued, which purport to strip more than a million acres of monument status, are redolent of this Administration’s illiberal and procedurally dubious tendencies. They elevate to federal policy the themes and goals of a strand of Western populism that is tainted with outlawry and racism. The proclamations also cater to extractive industries, particularly uranium, oil and gas, and coal, in ways that resonate with the Trump Administration’s relentless mixing of public wealth and private interest–in a phrase, its penchant for corruption….

Corruption is not a novel concern here. For well over a century, the field [of public-lands law] has been shaped by recognition that precipitate and opportunistic privatization is a perennial temptation in a body of law that governs nearly a third of the country’s acreage and a great deal of its natural wealth. The Executive branch’s capacity for rapid, unilateral, and obscure action makes it especially suited to this form of misappropriation. Recognition of these facts is built into public-lands law in the long-standing asymmetric preference for Presidential power to preserve lands over Presidential power to privatize them…. The kind of opportunistic favoritism that the Trump proclamations display is precisely what public-lands law has been structured over centuries to avert. These proclamations are paradigms of why unilateral Presidential reclassification toward privatizing natural resources would be anomalous in public-lands law. A Court would properly consider the anomaly in deciding whether the power to create national monuments should imply the power to unmake them.

In the case of the Trump proclamations, the question of opportunism and favoritism in reclassification decisions interacts with the influence of racially inflected nationalism and localist outlawry on the Administration’s priorities. Here too, as with corruption, these themes are not novel or alien to public-lands law. Extractivism, settler-colonialism, and the priority of property-style resource claims and local control are, in key ways, continuations of the themes that governed the first hundred years of public-lands law. Their constituencies have never left the field. It is partly because of these constituencies’ persistent opposition to preservation agendas that public-lands law has always been inflected by disputes over national identity, from the utilitarian nationalism of Gifford Pinchot and Theodore Roosevelt’s national forests to the national parks’ much-advertised status as the American answer to Europe’s cathedrals to the claim that wilderness preservation would keep the country from becoming a “cage.”

Here too, public-lands law has been shaped by grappling with the themes that the Trump proclamations raise. And here too its shape contains a good part of an answer. The public-lands populists’ claims on behalf of privatizing and extractive policies already have a specific legal expression that is deeply embedded in public-lands law: in long-standing public rights-of-way across the federal lands of the West, in mining and mineral-leasing regimes, in grazing rights, and in the default policy of extensive public recreational access — and, above all, in the private real estate that was substantially created under federal privatization schemes. In other words, these claims do not come from outside public-lands law. They are part of it, and they occupy a specific place in its structure. Where they have been vested, they tend to persist within new regimes that otherwise emphasize preservation over extraction and economic use. On multiple-use lands, they play a prominent part in the statutorily mandated planning process. Where, however, they are not vested but take the form of inchoate expectations of continued access, they yield on categorically protected lands: new privatizing and extractive claims are almost uniformly excluded under preservation regimes. For such claims to get traction again, the lands themselves must be reclassified. That reclassification is generally reserved to Congress. If the Antiquities Act authorizes the President to hand a victory to public-lands populists by reclassifying hotly contested lands, then it is a dramatic anomaly in public-lands law. It would authorize constant perennial and shifting reopening of precisely the disputes that the field exists to structure and resolve, and through a mechanism that is procedurally orthogonal to the rest of the field.

The Trump proclamations raise a novel question for interpretation of one of the most important public-lands statutes. Like much that this Administration does, however, it is not so much new as it is an effort to reopen questions that many of us had hoped were closed. In this case, they should remain closed.

On the afternoon of Friday, December 22nd, with Congress in recess and most Americans already starting their holiday celebrations, the Department of the Interior issued a 19-page legal memorandum reversing hard-won, eleventh-hour Obama-era protections for the Boundary Waters Canoe Area Wilderness in northern Minnesota. Signed by Interior’s Principal Deputy Solicitor Daniel Jorjani, Memo M-37049 allows Twin Metals, a wholly-owned subsidiary of the Chilean conglomerate Antofagasta Plc, to renew its leases of Superior National Forest lands where it proposes to mine copper, nickel, and other minerals for the next 100 years.

Even one year of mining would scar the land, destroy wetlands, wreck the forest and fill it with industrial noise, and pollute the water. And this kind of mining — sulfide mining — always risks major environmental catastrophe, long after a mine is closed and the land reclaimed. After a brief reprieve, the Twin Metals project is again threatening this unique public wilderness area, along with the thriving tourist and outdoor economy that has grown up around it.

The reversal was immediately met with allegations of corrupt dealing. In a statement calling the move by Interior “shameful,” Minnesota Governor Mark Dayton cried foul.

Statement from @GovMarkDayton concerning the memorandum issued today by the U.S. Interior Department reversing its decision on mineral leases for Twin Metals near the Boundary Waters Canoe Area Wilderness #mnlegpic.twitter.com/0Cl2EkjYwq

A December 22nd headline in the Wall Street Journal offered what appeared to be a straightforward explanation: cronyism. “Trump Administration to Grant Mining Leases That Will Benefit Landlord of President’s Daughter Ivanka Trump.” But Chilean billionaire Andronico Luksic Craig, whose family controls Antofagasta Plc, and who only after Trump’s election purchased the Washington, D.C. mansion Ivanka Trump and Jared Kushner rent for $15,000 a month, claims never to have met his tenants, and says he met Donald Trump only once, at a New England Patriots game.

It’s unclear whether Luksic Craig’s denials can be taken at face value and whether they are enough to dispel the notion that the reversal was made directly to benefit Antofagasta or the Luksic family. What prompted the action? Who directed it? Who contributed to the memo, and who reviewed it? What conversations did Interior Secretary Ryan Zinke, Deputy Solicitor Jorjani, and other administrators have about the reversal, and with whom?

The public deserves clear answers to these questions, and last week, I submitted a FOIA request to the Solicitor’s Office at the Department of the Interior, to see if I might gain some insight into the process behind Memo M-37049. At the same time, it’s worth noting that these are not the only questions worth asking. Luksic Craig and his Washington, DC mansion may make good headlines, tabloid fodder, and Twitter snark, and there is no ignoring the whiff of impropriety about his real-estate dealings with the president’s daughter and son-in-law, who also happen to be senior White House advisors. But that’s not the whole story here. A scandal involving Luksic-Craig and his tenants, or some direct dirty dealing between Antofagasta and Interior, might eventually come to light, but the prospect of such a scandal might also serve to distract us from other, large-scale corruption that continues to put the Boundary Waters — and other public lands and waters — at serious risk.

Put the reversal in context. Consider, for example, the Executive Order, entitled “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” that was issued just two days before the Boundary Waters reversal, and which, like the Interior memo, sets the stage for exploitation of mineral resources on public lands. The EO appeared to be the policy outcome of a U.S. Geological Survey of the country’s critical minerals resources published on December 19th; but Trump’s December 20th order was years, not one day, in the making.

The EO revives Obama-era legislative battles over so-called strategic and critical minerals and declares victory by executive fiat. Back in 2013, pro-mining measures introduced in both the House (HR 761) and the Senate (S 1600) promised to “streamline” the permitting process for multinational companies mining on federal lands, like Superior National Forest. The Obama administration opposed them on the grounds that they would allow mining companies to circumvent environmental review. Proponents of HR 761 called it cutting red tape; the resolution actually tried to shut the public out of the process. It touted jobs, but, as critics pointed out, provided no real strategy for creating them; and it hawked anti-Chinese hysteria of the kind that candidate Trump regularly advanced. (Tellingly, House Republicans rejected a motion that would have barred export to China of strategic and critical minerals produced under the HR 761 permit, in tacit acknowledgment that China drives global demand for copper and nickel.) Coming just two days after this EO, the Boundary Waters reversal looks less like a one-off favor to a Chilean billionaire, and more like a coordinated move in a broader campaign.

This subversion of public process is not just the dirty dealing of a few bad actors. It’s also the consequence of weakened institutions; and institutional sabotage — or what Steve Bannon pretentiously called the deconstruction of the administrative state — is the precursor to large-scale corruption. Scott Pruitt might still be the poster boy for putting the fox in charge of the henhouse, but Ryan Zinke appears to be pursuing a similar brief at Interior. Though his bungling of the offshore drilling announcement made him appear incompetent, he is making big changes to favor big mining. The Secretary has made it one of his agency’s top ten priorities to “ensure access to mineral resources” and committed to minimizing “conservation objectives” that interfere with extractive industrial development. His plan to shrink Bears Ears followed a map drawn by a uranium mining company. At Grand Staircase-Escalante and Gold Butte National Monuments, Zinke has virtually surrendered vast swaths of public lands to extractive industry.

The Boundary Waters reversal, too, looks like the work of institutional saboteurs. It settles a lawsuit against the Department of the Interior by conceding that the government should not have discretion over public lands when commercial interests are at stake. Its author, Deputy Solicitor Jorjani, did a brief stint at Interior during George W. Bush’s second term, but it was his high profile job as Executive Director of the Koch Institute that distinguished him as the right man for Ryan Zinke’s Interior. As Polluter Watch, a project of Greenpeace, notes, Jorjani was the Koch Institute’s very first hire, and among the five most highly compensated employees at the Charles Koch Foundation. Now, along with Scott Cameron and Benjamin Keel, Daniel Jorjani works with the team at Interior charged with “reviewing rules their previous employers tried to weaken or kill,” according to reporting by the New York Times and Pro Publica. Similar deregulation teams, “connected to private sector groups that interacted with or were regulated by their current agencies,” were formed at all administrative agencies. The teams put public institutions at the service of powerful patrons, subordinating public protections to private interests.

This capture and sabotage of government agencies compounds and multiplies risk, removing public safeguards and compromising appointed guardians. In the case of the Boundary Waters, the risk of irreversible damage and environmental catastrophe would extend far beyond the mining location, because mining in Superior National Forest would also significantly intensify the cumulative effects of the recent boom in leasing, exploration, and drilling throughout the Lake Superior watershed.

All around the greatest of the Great Lakes, the industrial footprint of sulfide mining operations is expanding rapidly. Just to the southwest of the Boundary Waters, for example, Polymet, a company that has never operated a mine before, proposes building an open pit copper and nickel mine that will require water treatment and tailings dam maintenance “in perpetuity” — that means forever. Meanwhile, Scott Pruitt is dismantling federal rules requiring hardrock mining companies to take financial responsibility for cleanup.

State regulatory agencies are poorly equipped to oversee these new projects. They often fail to give the public a meaningful voice in permitting, or obtain the required prior consent from the region’s Indigenous nations. For their part, many state politicians are racing to deregulate, or at least accommodate, the mining companies. Just this past October, Wisconsin republicans repealed the state’s Prove it First law, which required copper, nickel and gold miners to prove that they could operate and close a sulfide mine without producing acid mine drainage. (They never proved it.) In Michigan, where Canadian mining companies are moving aggressively into the Upper Peninsula, State Senator Tom Casperson has just proposed giving mining companies and other representatives of industry “disproportionate clout” in the review of environmental rules.

Obviously this all goes way beyond doling out favors to billionaire friends or cronies at Mar-A-Lago, and it didn’t start when the Trumps came to town. Until it is called out, voted out, and rooted out, corruption at this scale – coordinated, institutionalized, systemic – will make a mockery of rule-making and oversight, and put our public lands, as well as our public life, at risk.

Postscript: This January 10th article by Jimmy Tobias in the Pacific Standard takes a careful look at Daniel Jorjani’s calendar, which was obtained through a records request, and identifies two meetings with representatives of the Twin Metals mining project: a June 14, 2017 meeting with Raya Treiser and Andy Spielman of WilmerHale on behalf of Twin Metals, and a July 25th meeting with Antofagasta Plc. I discuss these meetings in this follow up post.

The authors of the National Strategic and Critical Minerals Production Act (H.R. 761) complain that we depend on China — can you believe it? China! — for rare earth minerals that are “vital to job creation, American economic competitiveness and national security.” But the Act, which passed in a House Committee on Natural Resources vote on May 15, 2013 with bipartisan support, will effectively ease regulation of foreign multinational mining companies operating in the United States, including those who mine here and market U.S. minerals in — yes, you guessed it — China.

Bureaucratic delay puts “good-paying mining jobs…at the mercy of foreign sources,” according to the Act. Our security and prosperity are threatened from without, so we need to protect ourselves from within; and we are asked to believe that the surest way to do that is to replace careful assessment and regulatory oversight of risky mining operations with new efficiencies. The Act laments the weight of “onerous government red tape”: if only Atlas would shrug.

The authors of this act do not even try to disguise their contempt for the role of government in regulating industry and the “environmentally responsible development” they purport to uphold. Citing a report by international mining consultancy Behre Dolbear Group (with offices in Beijing, Chicago, Guadalajara, Hong Kong, Sydney, and Ulaanbaatar, Mongolia, among other places, where, presumably, its teams of advisors and engineers steadfastly champion the strategic and economic interests of the United States), they note that “the United States ranks last with Papua New Guinea out of twenty-five major mining countries in permitting delays, and towards the bottom regarding government take and social issues affecting mining.”

That last clause about “government take” and “social issues affecting mining” gets sneaked into the sentence here without consideration for the social effects mining operations have: society here is just in the way of business and taxes or takings are just a burden. This is reckless thinking, but it’s carefully smuggled into discussions of the Act with the distracting reference to Papua New Guinea. That line snorts mockery and imperial contempt, and it’s intended to shame and prompt outrage — like the newspaper headlines the ranking inspired: The Wall Street Journal: “U.S., Papua New Guinea at Bottom of List for Mining Permit Delays.” Mineweb: “Protracted Permitting Delays Depress U.S. Mine Investment.” The Hill: “U.S. Wins Race to the Bottom on Mining Permits — Again.” The comparison with Papua even figured into an article by M.D. Kittle in the Wisconsin Reporter: “Wake Up, Environmentalists: Your Cell Phone Was Mined Somewhere Else.”

Needless to say, these newspaper discussions aren’t balanced by any appreciation of the complex social, environmental and human rights issues around mining in Papua New Guinea (or the United States). The promoters of H.R. 761 certainly aren’t going to invite debate on the situation in Papua — where growth in the mining sector has brought corruption, violence, and environmental devastation. Their intention is clear: they want to hold up Papua as one of those foreign and dirty places, a slow, corrupt and silly place, a little, squalid, underdeveloped and dark place. Certainly not an efficient place.

Lest the Chinese enslave us or we end up living like pygmies in grass huts, we have to make it easier for big mining companies to give Americans jobs. That is the hysteria just under the surface of H.R. 761. The legislation is so broadly and poorly written, and either so cynical or so ill-conceived, that any mining operation will be able to claim its protection from regulatory oversight. The “strategic and critical” exemption from government interference and delay will be repeatedly invoked, as it was by Republican Chip Cravaak in 2011, who at the time represented Minnesota’s 8th district in the U.S. House.

Before his defeat in 2012, Cravaak advanced the claim that exploiting the copper and nickel resources of the Boundary Waters Canoe Area in Minnesota would be “necessary for U.S. strategic interests.” According to a 1978 law, those areas can only be mined in case of national emergency; but Polymet, a Canadian company, has been working since 2006 to obtain permits for an open pit mine in Superior National Forest. They negotiated a land exchange and loan scheme to get around the prohibition. Cravaak waved the stars and stripes for them on the Hill. Meanwhile, Toronto-based Polymet made a deal with the Swiss company Glencore to sell its American metals on the global market. At the time, Elanne Palcich noted, demand was especially strong in China and India.

Last month, in towns around the Big Bay area of Michigan’s Upper Peninsula, global mining giant Rio Tinto held the second in its series of “community scorecard” forums. At these events, people from the communities around Rio Tinto’s Kennecott Eagle Mine project are asked to score the company on its performance in five areas: environmental performance, local hiring, safety, transparency and communication, and, finally, something the company calls “leaving more wood on the woodpile,” which is supposed to be a folksy way of talking about the company’s contributions to the development of the region.

Rio Tinto prides itself on these forums: “to our knowledge no other mining company has introduced a tool that allows the community to regularly rate their performance, which is then made public. We hope with the Eagle Mine Community Scorecard the UP continues to set new benchmarks in how modern mining works with communities.” But after reading a few accounts of the forums and watching some video clips of the meetings included on Keweenaw Now, a local blog, all I see is a lost opportunity.

Turnout at these forums has been low — about fifty people showed up for the biggest forum in Marquette, and most of them were Rio Tinto employees — so the scorecard results, which the company touts as proof of social license, will hardly stand close scrutiny. “It’s a global mining corporation’s idea of democracy,” remarked Kathleen Heideman of Save the Wild UP. “First they show slides about how great they are — then we should click to indicate our agreement. That’s meaningless.” Even when the company allowed questions and comments before the scoring period at a May 15th meeting in L’Anse, the meeting could hardly be described as an authentic community forum.

Rio Tinto may think that with these forums it’s doing something entirely new, but in reality the company is making a lot of old mistakes.

If these community forums are going to be anything more than a public relations exercise with predetermined outcomes, the current design of the forum needs to be scrapped and they need to be radically reconceived. Voices from the communities around the Eagle Mine need to be heard and heeded — to use a phrase I’ve used elsewhere (e.g., here and here) to talk about what real listening takes — and the power dynamic in these forums needs to shift. Otherwise, I don’t see much chance of the forums making the slightest difference in how the mining company operates, how it contributes to the development of the region, and whether it can ever enjoy social license to operate in the UP. Those are all things Rio Tinto claims it cares about.

In the video clips posted on Keweenaw Now, you can see how things went. Put aside, for the moment, the content of the discussion (which, despite the company’s attempt to kill the discussion by PowerPoint, is rich and provocative — a real tribute to the local citizens who did their homework and turned out for the meeting). You don’t have to know anything about the situation in the Upper Peninsula to sense that things are amiss. Focus on just one very telling detail in the video clips: who’s holding the microphone? At Rio Tinto Community Scorecard forums, the Rio Tinto people stand at the front of the room and speak into microphones. Nobody else does.

This may seem like a small detail. There are, after all, big things at stake — the integrity of the environment around Big Bay and the Salmon Trout River, the economic future of the Upper Peninsula as well as the future of life on Lake Superior. Rio Tinto’s Eagle mine opens the first phase of one of the biggest mining operations in the world — which is about to be staged around one of the biggest freshwater lakes in the world. This is a critical turning point. All around Lake Superior, things are going to change: things are already changing. Surely it can’t matter who’s standing where and whether they are holding a microphone?

I think it might.

Here’s a typical clip, where Jeffery Loman of the Keweenaw Bay Indian Community asks Rio Tinto’s Matt Johnson about the permitting process for discharging mining effluent into groundwater and surface water.

Johnson stands in front of his PowerPoint slides, holding the microphone as Loman, seated with the others in attendance, tries to engage him. At around 2:40 in the clip, when Johnson feels that the question is too technical for him to answer, he hands off to Kristen Mariuzza, Rio Tinto Eagle Project Environmental and Permitting Manager. And what does Mariuzza do? She marches to the front of the room and takes the microphone.

Mariuzza probably does this thinking that it’s the only way everybody in the room can hear her, or she’s so accustomed to presenting in a Rio Tinto corporate setting that she doesn’t know how to drop the act in other settings. Everyone can obviously hear Loman, who remains seated and addresses Johnson and Mariuzza in a normal tone of voice. It’s curious, isn’t it? Johnson and Mariuzza seem to be the only people in the room who require a microphone in order to speak and to be heard. Why do their voices need to be amplified above all others? That is, after all, what microphones do: they amplify one voice so that others are relegated to the background, or drowned out altogether. So both Johnson and Mariuzza are speaking over the community, and (I don’t choose this word lightly) dominating the discussion. The microphone sets the power dynamic of the situation.

Some of us are old enough to remember those corny Popeil TV commercials for a product called Mr. Microphone. The commercial runs through a number of different scenarios in which people use this amazing product to amplify their voices — transmitting it to a radio and broadcasting it for all to hear.

Essentially each scenario is the same: everyone finds Mr. Microphone amazing, but everyone is most amazed at the magical sound of his or her own voice coming through the radio. People around them laugh and notice, but the astonishment, the surprise, the wonder at Mr. Microphone is a deeply narcissistic pleasure. Something like that is happening here, to a lesser degree but with graver consequences. The people from Rio Tinto are amplifying — and most likely hearing — only their own voices, not the voices of others, and they are, I’d venture, deriving from that experience a false sense of satisfaction at having engaged with the local community.

What could they be doing instead? For starters, I would suggest they ditch the microphones, so that no one’s voice is amplified over all others. This won’t solve the problems being discussed, but it will increase the chances for voices from around the community to be heard. If people seated in the back of the room can’t hear what’s being said, then it can be repeated for their benefit: there’s value in repetition, as it gives everyone in the room a chance to assess again what’s being said and agree that someone’s view is being accurately communicated. Efficiency is not a virtue of real conversation.

If the Rio Tinto people are not standing at the front of the room holding a microphone, what will they do? Sit down — and not at the front of the room, where they are sure to command attention and where everyone must ultimately direct their remarks. There is no good reason not to sit in the same chairs that are comfortably accommodating the people with whom one is meeting. Again, this sounds like a minor adjustment, almost a point of etiquette, but I have seen this work wonders in classrooms deliberately designed so there is no front of the room, in corporate as well as academic settings. This way, anyone in the room can lead the conversation at any given time.

Now the room is starting to look like a face-to-face meeting — with everyone’s face at the same level and everyone seated at roughly the same distance from each other. Let’s not pretend for a moment that this will somehow put Rio Tinto on equal footing with the citizens in the room. Johnson and Mariuzza represent a multi-billion dollar global mining company with tremendous power and enormous reach in the Michigan legislature and beyond, to the highest levels of national government. In fact, Matt Johnson himself came out of Governor Jennifer Granholm’s administration to work for Rio Tinto as its local front man on the Kennecott project; Mariuzza also walked through a revolving door, out of government and into Rio Tinto. So there is a huge power disparity in the room — one that a simple conversation like this cannot bridge. But at least with these and other changes there might be a chance at conversation.

There are other steps the mining company can take if it is serious about developing these forums. Here are just a few:

Relinquish control. A credible, independent third party, someone who isn’t in Rio Tinto’s employ, should moderate and facilitate the conversation. Right now the flow of the conversation is controlled by the man with the microphone. A facilitator can help the whole group focus on issues, clarify what’s being said and ensure that people in the room are being heard.

Map the conversation. It looks as if right now there’s no way to capture what’s being said in the room and ensure that everybody agrees on what was said and that their point of view is being adequately represented. Video cameras record, but they also capture one point of view. Some sheets of white paper or a whiteboard would allow one person to track the conversation, and make it possible for anyone to stand up and edit, on the spot, what’s on them.

No more dog and pony. The PowerPoint show should be left where it belongs — back at the corporate office. It is a way to control the narrative, discouraging conversation, other points of view and other stories. If diagrams or maps are required for the conversation, then anyone in the room should be able to control the slideshow — and anyone in the room should be able to introduce slides.

These Community Scorecard forums may ultimately succeed or continue to fail, but people living around the Eagle Mine don’t need microphones or PowerPoint slides or corporate sponsors to talk about what’s happening in their communities. Towns and townships in the Upper Peninsula and communities all around Lake Superior may not have the clout of Rio Tinto or any of the other mining companies, but they have each other — and there’s great power in that, or at least there can be, no matter how much wood Rio Tinto leaves or does not leave on the woodpile.

The other day I expressed some misgivings over the word that Earthworks chose to apply to water in the first sentence of its report, Polluting the Future: their characterization of water as an “asset,” I said, made me uneasy. The water flowing from springs and brooks, the water of rivers, lakes and streams, the raindrops that fall from the sky and the dew on the morning grass, the water in our bodies, in plants and trees, the water in dogs, flowers, bugs, fish, elephants, walruses and caterpillars, the water in everything that is alive on earth — water is and will always be something greater, more wondrous and something other than a mere entry in the accounting ledgers of some grand business enterprise, which is all that the word “asset” conjures for me.

I came across the word again today as I was reading an editorial in The Detroit Free Press. I am in complete sympathy with the position it takes against plans to build a huge network of oil pipelines carrying diluted bitumen (or dilbit) across the Great Lakes region, and to transport crude oil by barge across Lake Superior. These are reckless, irresponsible ideas. The threat they pose to the integrity of the Lakes and the life the Lakes sustain is only made worse when you consider a couple of salient facts. First (and it is curious that the editorial does not mention this), the new mining around Lake Superior — as I’ve noted repeatedly — is already going to put pressure on Lake Superior and the Lake Superior watershed; the shipping of oil by barge would bring even more industrialization and greatly heighten the risk of environmental catastrophe. Second, the company building and running the pipeline (the Canadian company Enbridge) has already been responsible for an environmental disaster in Kalamazoo, Michigan — the worst inland oil spill in US history, in fact.

The editorial takes the position that these plans betray a “deep misunderstanding of the true value of the lakes,” but when the editors try to say what that value is, they run into trouble:

It’s easy to wax poetic about the value of the Great Lakes to Michigan and the other states they border. The beauty of the lakes, the wildlife and fish that dwell in and around the lakes, the environmental benefits the lakes present — they’re incalculable.

It’s interesting how the argument here moves, in just a couple of short paragraphs, from the “incalculable” to the crudest of calculations — the “worth” of clean water. This is tantamount to arguing that what is “morally and ethically” right should take second place to what is financially sound — as if finance should have more claim on the imagination and intellect (and the heart) than morality, and monetary value should be privileged over moral and ethical considerations.

I suppose that’s the way it goes nowadays, and I just need to get real. Still, there’s a great swirl of confusion in these two paragraphs, and I have a number of questions about the concept of morality being invoked here, how we’re to distinguish it from ethics, and why those things don’t seem to figure into what are called “practical” considerations. Practice and finance here are unmoored from and unrestricted by moral and ethical concerns; it’s precisely that kind of thinking that got us into the precarious situation we’re now in.

One remedy for all this confusion may lie in the perspective that holds water to be a basic human right — a perspective I also found missing from the Earthworks report. But even then we need to go beyond talking about assets and recognize the limitations of the argument that “clean freshwater is one of the scarcest commodities.” Why? Follow the link from The Detroit Free Press editorial to the National Geographic site on the “Freshwater Crisis.” There you enter a Malthusian world:

While the amount of freshwater on the planet has remained fairly constant over time—continually recycled through the atmosphere and back into our cups—the population has exploded. This means that every year competition for a clean, copious supply of water for drinking, cooking, bathing, and sustaining life intensifies.

Here, all of humanity is engaged in a contest or race. More and more people enter every year to compete for the same, limited resources. This is one reason why it’s imperative to recognize freshwater as a human right. Otherwise, history becomes a death match, or a big, global reality TV show: intensifying “competition” over this scarce “commodity” means that there will be winners and losers in the water game. The winners are fully vested with their rights; the losers struggle to survive in arid, toxic regions, or simply die of thirst.

“This is something that we had anticipated,” said Rio Tinto-Kennecott spokesman Kyle Bennett, when asked about the huge landslide that shut down the Bingham Canyon Mine last week.

If we are to believe the Rio Tinto press release, it was nobody’s doing. The Canyon Mine simply “experienced a slide along a geotechnical fault line.” The mining company saw this trouble coming since February, we’re told, and once the movement “accelerated…pre-emptive measures were taken.”

Still, the enormity of the slide took Ted Himebaugh, Kennecott’s general manager of operation readiness, by surprise: he told the Deseret News that “he had seen nothing like it in his 36 years with the company.” A black swan event, then — a wonder. Who could have foreseen this?

It’s telling and a little disturbing that the statements the Rio Tinto issued after this disaster (and disaster is the right word here) make no mention of what was going on prior to the slide at Bingham Canyon, which is — it’s hard to believe this needs saying — a whole lot of mining and a whole lot of earth disturbing in close proximity to a geotechnical fault line. In fact, the Bingham Canyon operation is the world’s largest man-made excavation.

Rio Tinto has been very careful to sidestep any acknowledgement of its role, any connection of the mining operation with the slide, any accountability or responsibility for the slide: the Canyon experienced something; Rio Tinto watched. It’s as if some greater powers were at work in the Canyon — as if the earth in Bingham Canyon moved entirely on its own. The company of course moved everyone to safety, and now plans to get the mine up and running again, to “provide not only the jobs for the people but money to the state of Utah and economy.” The only thing that might hold things up is if they can’t resume operations safely: “we will not take a risk.”

I suppose that’s meant to be reassuring. It makes me shudder. What’s missing here is any deeper appreciation of just how risky these industrial mining operations always already are, even when things are running perfectly and according to plan. People concerned about the dangers of subsidence posed by the Eagle Mine operation on the Yellow Dog Watershed (another Rio Tinto /Kennecott project, which I’ve blogged about before — here and here, for instance) might want to have a good look at this Bingham Canyon slide and think about the risks they’re about to run. But it goes beyond — way beyond — the very serious risks of spawning streams collapsing, acid mine drainage, or other kinds of environmental degradation. Industrial mining operations put everything at risk: peace, agriculture, and social stability in many parts of the world, environmental sustainability everywhere mining is done.

That doesn’t mean mining shouldn’t be done at all. It means that when it is done, and done at this scale, people, communities, companies and investors need to understand fully how mining will affect them, what it will require of them, what it will involve, what it will bring and what it will leave behind. Company- and industry-sponsored community outreach and corporate responsibility efforts are insufficient; they are created to conceal the real risks and the true costs of mining.

“Mining is the material basis for life, making it difficult to exaggerate its significance. George Orwell called it part of the ‘metabolism’ of civilization,” Shefa Siegel writes; and yet “the ethics of mining are nowhere to be found.” His essay is a must-read, especially this week, in the wake of Bingham Canyon and the run up to the Rio Tinto Annual General Meeting.

One outcome of mining’s omission from environmental and development ethics is that as other disciplines and sectors gradually integrated concerns about sustainability into their knowledge communities, mining engineering, mineral economics and processing, geochemistry, and other sub-disciplines associated with mining have remained static. As a result, there is less experience with the study and practice of sustainable mining than, say, forestry, agronomy, or soil ecology. There is no mining equivalent, for example, of the Yale School of Forestry & Environmental Studies. And while there is much anxiety about the failure to enact the ethics of climate change or environmental health, mining does not even have an ethical roadmap that we do not follow. With climate change there is broad agreement that exceeding a 2 degree Celsius rise in temperature breaks the planet. Pollution experts know to a microgram the tolerable level of exposure to mercury, lead, and arsenic. But what is expected of a mine?

Only in the last decade has vocal public discourse about global resource policy emerged. The effort to build an ethics of sustainable extraction is structured around two principal concepts: transparency and corporate social responsibility. While transparency initiatives concentrate on exposing revenue transactions between the private and public sectors in extractive industry projects, corporate responsibility efforts focus on the improvement of relations between companies and communities. The transparency movement has sparked advocacy and legislative activity in the United States, United Kingdom, and Canada—the host markets for much of the world’s trading of mining shares. Meanwhile, companies are dedicating more staff and resources to ensure the benefits of mine development reach communities in the form of improved services, infrastructure, and education. These twin concepts are intended to transform resource extraction from a winner-takes-all model to one in which all parties benefit.

The problem is that neither corporate responsibility nor transparency speaks to the reconciliation of extraction with ecological limits, or to the fact that we have entered a period of resource scarcity that necessitates nothing short of monopolization to make the business of industrial mining profitable. This order of magnitude leaves no room for multiple uses of land and resources, especially the smallholder farming and mining economies upon which people depend in mineralized places. Endemic poverty, conflict, and ecological collapse in these regions are rooted in the inequitable allocation of resources. In such cases, win-win solutions are an illusion.

I heard conflicting reports about uranium mining when I was last in the Upper Peninsula.

Some people said the prospect of uranium mining next to Lake Superior was imminent — and that was their worst nightmare. Others dismissed it as nothing more than a rumor, or a “scare tactic” by environmentalists to put the kibosh on other kinds of mining.

Just to be clear, there has been uranium exploration in the Upper Peninsula since the 1950s. The map of active mining, mineral exploration and leases put together by the Lake Superior ad hoc Committee, which I mentioned in a previous post, shows active exploration right now at two sites in the Lake Superior region. One is near the Crystal Falls State Forest area, southwest of Marquette, in the vicinity of the Michigamme Reservoir. There is also active uranium exploration on the Canadian side, just north of the St. Mary’s River, between Sault Sainte Marie and Lake Superior Provincial Park.

If either of those sites turns out to be significant, pressure will build quickly to mine. An article in today’s Times about uranium exploration in Virginia suggests the lengths to which mining interests will go in order to exploit these valuable deposits. The Times reports that Virginia Uranium has spent more than $600,000 on campaign contributions and lobbying since 2008. They expect a haul worth $7 billion. They’ve flown Virginia lawmakers to France “to visit a tailings storage site,” and do whatever else politicians do when on an all expenses paid junket to France. And that’s only the start of the lobbying effort, the payola and the pitch to local communities.

Some of it is subtle. Virginia Uranium positions uranium mining as a national security issue and itself as “a leader in environmental stewardship.” The first claim is dubious and the second is an utterly meaningless statement when you are out to mine uranium, but it’s one I’ve heard echoed by mining companies and mining proponents operating in the Upper Peninsula.

There are other telling echoes here as well: in Virginia there are roadside signs saying “Stop Whining Start Mining,” according to the Times. The same signs started to appear in the Upper Peninsula once the new mining got underway. Maybe the rhyme comes easily to those with a big appetite for mineral extraction and a low tolerance for all this mewling about the environment. But it’s interesting, isn’t it, and at least worth noting, that the slogan also appears on bumper-stickers for sale on the website of the Acert Group — a “coalition of concerned private citizens” working “together with uranium exploration and mining companies.”

From what I have been able to learn so far about the Acert Group, they are usually busy advocating uranium mining in Arizona. But now it appears that their concern, or at least their sloganeering, might extend to other parts of the country as well.

Update (1 Feb 2013)

Yesterday, the Virginia legislature abandoned a proposal to establish state regulations for uranium mining (which would have been tantamount to lifting the moratorium). State Senator John Watkins, a mining proponent, has now asked Governor Bob McDonnell to take executive action and ask state agencies to draw up the new regulations (which would be tantamount to lifting the moratorium).

Watkins is said to be “reviewing the request”. Still, Cale Jaffe of the Southern Environmental Law Center calls this setback for Virginia Uranium “a resounding victory.”

“This is not just environmentalists,” Jaffe said. “This is small business owners in Southside, it’s farmers, it’s parents of small children, it’s community leaders, it’s physicians — all these disparate voices coming together.”

Apparently the “whining” in Virginia has become a chorus of voices. The question is whether Governor McDonnell is listening, or does Virginia Uranium have his ear?